# Autin v. City of Baytown > Court of Appeals for the Fifth Circuit · December 29, 2005 · 174 F. App'x 183 URL: https://www.frixlaw.com/law-library/cases/40497 ## Case - **Full name:** Naomi AUTIN, Plaintiff-Appellee, v. CITY OF BAYTOWN, Texas, Et Al., Defendants, Micah Aldred, Defendant-Appellant - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** December 29, 2005 - **Citations:** 174 F. App'x 183 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Smith, Garza, Prado - **Cited by:** 22 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/40497 ## How later opinions describe it (automated extraction) - affirming denial of qualified immunity to officer who tased the suspect in the back, reasoning that the suspect “was at most committing the minor crime of criminal mischief,” was holding a brick, but was “objectively unthreatening,” and was not resisting arrest - affirming denial of qualified immunity where the officer tased a plaintiff multiple times and the plaintiff was, at most, committing the minor crime of criminal mischief, was not a threat to the officers or others, and was not resisting arrest - finding excessive force where officer “continued to tase [arrestee] repeatedly, even after she was subdued on the ground” ## Opinion text United States Court of Appeals Fifth Circuit F I L E D In the December 29, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________ m 05-20214 Summary Calendar _______________ NAOMI AUTIN, Plaintiff-Appellee, VERSUS CITY OF BAYTOWN, TEXAS, ET AL., Defendants, MICAH ALDRED, Defendant-Appellant. _________________________ Appeal from the United States District Court for the Southern District of Texas m 4:04-CV-481 _________________________ Before SMITH, GARZA, and PRADO, then repeatedly contact-tased Autin while phy- Circuit Judges. sically forcing her to the ground. Autin hit her head on a pole and suffered a severe PER CURIAM:* laceration. Micah Aldred challenges the denial of sum- II. mary judgment regarding an excessive force Autin sued Aldred, the City of Baytown, claim brought by Naomi Autin. Finding no and a number of police and city officials, alleg- error, we affirm. ing a variet y of civil rights violations. The district court awarded summary judgment to I. the defendants on all of Autin’s claims except The district court relied on the following for her excessive force claim against Aldred. pertinent facts: On July 11, 2003, fifty-nine- Aldred contends that as a state official, he is year-old Autin went to her brother’s house to entitled to summary judgment based on quali- check the mail. When no one answered the fied immunity from the excessive force claim. door, she became concerned about the occu- pant, who she had reason to believe was seri- III. ously ill. Because she could hear the television The standard of review we apply in an in- loudly through the door, Autin began terlocutory appeal asserting qualified immunity knocking on the door with a brick she found in differs from the standard employed in typical the yard, thinking this might get the occupant’s appeals of summary judgment rulings. Kinney attention. She then went to a neighbor’s v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004) house to telephone her brother’s house. (en banc). Ordinarily, we review the denial of When this was unsuccessful, she contacted summary judgment de novo, determining on the Baytown Police Department, and Officer our own review of the record whether a Aldred came to the scene. Autin requested Al- genuine issue of material fact exists. Id. In the dred’s help in getting someone to answer the qualified immunity context, however, we door. When Aldred told her he could not consider only whether the district court erred make anyone come to the door, Autin dis- in assessing the legal significance of the missed Aldred and returned to the door to conduct the district court deemed sufficient to continue knocking on it with the brick. overcome qualified immunity. Id. As Autin picked up the brick and ap- The district court properly took the view of proached the door, Aldred attempted to use the facts most favorable to Autin.1 We are to his taser on her, but it malfunctioned, so he ap- decide only whether that court erred in con- proached her and attempted a contact tase, cluding as a matter of law that Aldred was not but the taser again malfunctioned, causing a taser dart to penetrate Autin’s skin. Aldred 1 See Gonzales v. Dallas County, 249 F.3d 406, 411 (5th Cir.2001) (stating that “[o]n interlocutory * Pursuant to 5TH CIR. R. 47.5, the court has de- appeal the public official must be prepared to con- termined that this opinion should not be published cede the best view of the facts to the plaintiff and and is not precedent except under the limited cir- discuss only the legal issues raised by the ap- cumstances set forth in 5TH CIR. R. 47.5.4. peal.”). 2 entitled to qualified immunity on these facts. able. In Fourth Amendment excessive force Such a review of the district court’s assess- cases, the reasonableness question amounts to ment of the legal consequences of the facts is “whether the totality of the circumstances jus- de novo. Id., at 349. tifies a particular sort of seizure.” Tennessee v. Garner, 471 U.S. 1, 8-9 (1985). Important IV. factors to be considered include the severity of The Supreme Court has established a two- the crime, whether the actor poses an immedi- part test to be applied in determining whether ate threat to the safety of the officer or others, the presumption of qualified immunity is over- and whether he is actively resisting arrest or come. First, “taken in the light most favorable attempting to evade arrest by flight. Graham v. to the party asserting the injury, do the facts Connor, 490 U.S. 386, 396 (1989). alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 On the facts as presented by Autin and re- U.S. 194, 201 (2001). Second, is the right lied on by the district court, Autin was at most violated clearly established?” Id. This second committing the minor crime of criminal mis- question must be answered in light of the spe- chief. She posed no objective threat to Aldred cific context of the case, not as a broad, gen- or others and was not resisting or attempting eral proposition. Brosseau v. Haugen, 543 to evade arrest. It is irrelevant that Aldred U.S. 194 (2004) (citing Saucier, 533 U.S. at claims he felt threatened by Autin because she 201). “The relevant, dispositive inquiry in de- wielded a brick. The question is whether the termining whether a right is clearly established use of force was objectively reasonable under is whether it would be clear to a reasonable of- the circumstances as alleged by Autin, not ficer that his conduct was unlawful in the situ- whether the force was justified based on Al- ation he confronted.” Saucier, 533 U.S. at dred’s claimed interpretation of the situation at 201. the time.2 The district court correctly found that the Not only was Autin not resisting arrest, but facts alleged show that Aldred’s conduct vio- Aldred’s tasing of her was allegedly the first lated Autin’s Fourth Amendment right to be indication he gave to her that she was doing free from excessive force. To succeed in such anything wrong. He tased her when her back a case, a plaintiff must demonstrate that (1) he was to him, he gave her no notice of his inten- suffered a significant injury; (2) resulting di- tion to do so, and he continued to tase her re- rectly and only from the use of force that was peatedly, even after she was subdued on the clearly excessive to the need; and (3) the force ground. In judging the objective reasonable- used was objectively unreasonable. Fontenot ness of Aldred’s use of force, it should not be v. Cormier, 56 F.3d 669, 675 (5th Cir. 1995). forgotten that Autin was fifty-nine years old Autin suffered a significant head injury that resulted directly and only from the force Al- 2 See Stroik v. Ponseti, 35 F.3d 155, 158 (5th dred used against her. The relevant question Cir. 1994) (stating that “the only question is is whether, taking Autin’s version of the facts whether Ponseti’s use of force was ‘objectively as true, the force used by Aldred was both ex- reasonable’ in light of the facts and circumstances cessive to the need and objectively unreason- confronting [him], without regard to [his] under- lying intent or motivation”). 3 and five feet two inches tall. Given these are factors that tend to indicate whether the alleged facts, Aldred’s use of force was both use of force is appropriate. excessive to the need and objectively unrea- sonable. The district court correctly found None of these factors offers support for Al- that the facts as alleged show a violation of dred’s conduct: Autin was objectively un- Autin’s Fourth Amendment rights. threatening, she was not resisting arrest in any way, and her crime was minor. Aldred, how- After establishing that the violation of a ever, cites a number of cases in which courts constitutional right had been alleged, the dis- have upheld qualified immunity defenses, and trict court failed adequately to address the sec- he claims these cases involve facts similar to ond factor in the qualified immunity analysis those alleged here. In each of them, however, SSwhether the right was clearly established. at least one of the three excessive force factors The court appears to have approached the was plainly present. The plaintiffs in those question of objective reasonableness as though cases either posed an objective threat to the it were dispositive of both elements of the officers or physically resisted arrest. qualified immunity test. A jury trial may reveal other facts that jus- Each element must be addressed independ- tified Aldred’s use of force. At the summary ently, however. Saucier, 533 U.S. at 204-05. judgment stage, however, we are bound to The first element involves the objective rea- take Autin’s version of the facts as true. Giv- sonableness of the officer’s conduct, and the en those facts, nothing about the situation fac- second looks to whether he could have made ing Aldred would have indicated to a reason- a reasonable legal mistake in deciding whether able officer that repeatedly tasing a woman his conduct was legal. As stated above, the while forcing her to the ground was lawful relevant inquiry is whether it would be plain to conduct. Therefore, Autin’s Fourth Amend- a reasonable officer that his conduct was ment right to be free from excessive use of unlawful in the situation he confronted. Id. force was established under the particular cir- cumstances she alleges. Aldred will succeed on his qualified immu- nity claim if he can show that his mistaken be- AFFIRMED. lief in the legality of the force used against Au- tin was reasonable given the state of the case- law on excessive force at the time of the incident. When discussing the law of exces- sive force, the Supreme Court and this circuit typically emphasize the three factors discussed above.3 A reasonable officer is charged with knowing that, as clearly established law, these 3 See, e.g., Saucier, 533 U.S. at 205; Garner, 471 U.S. at 11; United States v. Brugman, 364 F.3d 614, 616 (5th Cir. 2004); Colston v. Barn- hart, 146 F.3d 282, 291 n.7 (5th Cir. 1998). 4 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/40497. Public record. Not legal advice.